AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 19, 2000
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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K-V PHARMACEUTICAL COMPANY
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(Exact Name of Registrant as Specified in its Charter)
Delaware 43-0618919
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(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
2503 South Hanley Road
St. Louis, Missouri 63144
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(Address of Principal Executive Offices) (Zip Code)
Employment Agreement dated as of
December 16, 1996 by and between K-V Pharmaceutical Company
and an Executive Officer, as amended;
Consulting Agreement dated as of
October 1, 2000, between K-V Pharmaceutical
Company and a Consultant
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(Full Title of the Plans)
Gerald R. Mitchell
Vice President, Treasurer and
Chief Financial Officer
K-V Pharmaceutical Company
2503 South Hanley Road
St. Louis, Missouri 63144
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(Name and Address of Agent for Service)
(314) 645-6600
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(Telephone Number, Including Area Code,
of Agent for Service)
Copies of All Correspondence to:
John P. Walsh, Esq.
Gallop, Johnson & Neuman, L.C.
101 South Hanley Road, 16th Floor
St. Louis, Missouri 63105
(314) 862-1200
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Amount maximum maximum Amount of
Title of securities to be offering price aggregate registration
to be registered registered per share offering price fee
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Common Stock, 75,000 $13.887(1) $1,041,525(1) $275
Class A
$0.01 par value
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Common Stock, 150,000 $12.742(1) $1,911,300(1) $505
Class B
$0.01 par value
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Common Stock, 500 $32.469(2) $16,235(2) $5
Class A
$0.01 par value
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(1) Estimated for the purpose of calculating the registration fee pursuant to
Rule 457(h) on the basis of the exercise price per share of outstanding
options for 75,000 shares of Class A Common Stock at $13.887 per share,
outstanding options for 75,000 shares of Class B Common Stock at $11.000
per share and outstanding options for 75,000 shares of Class B Common
Stock at $14.483 per share.
(2) Estimated for the purpose of calculating the registration fee pursuant to
Rule 457(c) ($32.469 being the average of the high and low prices for the
Registrant's Class A Common Stock on the New York Stock Exchange on
October 18, 2000).
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REOFFER PROSPECTUS
K-V PHARMACEUTICAL COMPANY
75,500 Shares of Class A Common Stock
(par value, $.01 per share)
and
150,000 Shares of Class B Common Stock
(par value, $.01 per share)
This prospectus of K-V Pharmaceutical Company, a Delaware corporation
("we", "us", or the "Company"), relates to the periodic offer and sale of: (a)
75,000 shares of Class A Common Stock, par value $.01 per share, 150,000 shares
of Class B Common Stock, par value $.01 per share (collectively, the "Executive
Common Stock"), which Executive Common Stock has been issued pursuant to, or, in
the case of shares subject to options, are reserved for issuance pursuant to an
employment agreement (the "Employment Agreement") dated as of December 16, 1996
between the Company and Marc S. Hermelin (the "Executive"), as amended; and (b)
500 shares of Class A Common Stock, (the "Consulting Common Stock"), which the
Company is obligated to issue (and intends to issue promptly after the
effectiveness of the Registration Statement of which this Reoffer Prospectus is
a part) pursuant to a Consulting Agreement dated as of October 1, 2000
("Consulting Agreement") between the Company and Laura Kragie, M.D. (the
"Consultant"). The Executive Common Stock and the Consulting Common Stock are
sometimes herein referred to collectively as the "Common Stock."
We will receive no part of the proceeds of sales made in the offering.
We will bear all expenses of registration for this offering, but all selling and
other expenses incurred by the Executive or the Consultant will be paid by the
Executive or the Consultant, as the case may be. None of the options or shares
covered by this prospectus has been registered before the filing of the
registration statement of which this prospectus is a part.
The principal purpose of this prospectus regarding the Executive Common
Stock and the registration statement of which it is a part is to allow the
Executive to transfer by gift the options and/or the Executive Common Stock
referred to herein to charitable foundations or other transferees for estate
planning purposes (and to ensure that those options and shares are thereafter
freely transferable by such transferees under the Securities Act (defined below)
without restriction). In addition, although the Executive has no present
intention to offer to sell any of the shares of Executive Common Stock included
in this Prospectus, the Executive may from time to time in the future offer for
sale all or a portion of the shares of Executive Common Stock included in this
Prospectus on the New York Stock Exchange (the "NYSE") or otherwise, at prices
and terms then obtainable. The Executive will pay all brokers' commissions,
concessions or discounts. The Executive and any broker executing selling orders
on behalf of the Executive may be deemed to be an "underwriter" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), in
which event commissions received by such broker may be deemed to be underwriting
commissions under the Securities Act.
Regarding the Consulting Common Stock, all or a portion of shares of
Consulting Common Stock offered hereby may from time to time be offered for sale
on the NYSE or otherwise, at prices and terms then obtainable. The Consultant
will pay all brokers' commissions, concessions or discounts. The Consultant and
any broker executing selling orders on behalf of the Consultant may be deemed to
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be an "underwriter" within the meaning of the Securities Act, in which event
commissions received by such broker may be deemed to be underwriting commissions
under the Securities Act.
The Class A Common Stock of the Company is listed on the NYSE under the
symbol "KVA" and the Class B Common Stock is listed on the NYSE under the symbol
"KVB." On October 18, 2000, the last reported sale price of the Company's Class
A Common Stock on the NYSE was $32.1875, and the last reported sale price of the
Company's Class B Common Stock on the NYSE was $32.25.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Reoffer Prospectus is October 19, 2000.
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AVAILABLE INFORMATION
As a public company with securities listed on the NYSE, we must comply
with the Securities Exchange Act of 1934, as amended (the "Exchange Act"). This
requires that we file annual, quarterly and special reports, proxy statements
and other information with the Securities and Exchange Commission (SEC). You may
read and copy any reports, proxy statements or other information we file at the
SEC's Public Reference Room at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's regional offices at Seven
World Trade Center, 13th Floor, New York, New York 10048 and Northwest Atrium
Center, 500 Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of these
materials may be obtained at prescribed rates from the Public Reference Section
of the Commission at its principal office at 450 Fifth Street, N.W., Washington,
D.C. 20549. You may also access our SEC filings at the SEC's World Wide Web site
at HTTP://WWW.SEC.GOV. In addition, since the Company's Common Stock is listed
on NYSE, similar information concerning us can be inspected and copied at the
offices of the NYSE, 20 Broad Street, New York, New York 10005.
This prospectus is part of a registration statement on Form S-8 that we
filed with the SEC to register the options and shares which may be offered by
the Executive or the Consultant. It does not repeat important information that
you can find in the registration statement of which this prospectus is a part.
For further information about us and the securities offered by us, we refer you
to the registration statement, including the exhibits filed as a part thereof
and otherwise incorporated by reference therein. You may inspect a copy, or
obtained one at prescribed rates from, the Public Reference Section of the
Commission at the address set forth above. Additional updating information about
the Company or the offering may be provided in the future by means of appendices
or supplements to this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We have filed with the SEC the documents listed below and each of them
is incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 2000.
2. The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2000.
3. All reports filed by the Company under Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this prospectus
and prior to the filing of a post-effective amendment which
indicates that all securities offered in connection with this
prospectus have been sold or which deregisters all securities
then remaining unsold.
4. The description of Common Stock contained in the registration
statement on Form 8-A which we filed with the SEC on March 22,
1999, shall be deemed to be incorporated by reference in this
prospectus and to be part hereof from the date of filing such
documents (such documents and the documents enumerated above
being hereinafter referred to as "Incorporated Documents").
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The documents listed above (excluding the exhibits attached thereto
unless those exhibits are specifically incorporated by reference into such
documents) may be obtained free of charge to each person to whom a copy of this
prospectus is delivered, upon written or oral request, by contacting the Company
at K-V Pharmaceutical Company, 2503 South Hanley Road, St. Louis, Missouri
63144, Attention: Corporate Secretary, telephone number (314) 645-6600.
As you read these documents, you may find some difference in
information from one document to another. If you find differences between the
documents and this prospectus, you should rely on the statements made in the
most recent document. All information appearing in this prospectus is qualified
in its entirety by the information and financial statements (including notes
thereto) appearing in the documents incorporated herein by reference, except to
the extent set forth in the immediately preceding sentence.
THE COMPANY
The Company was incorporated under the laws of Delaware in 1971 as a
successor to a business originally founded in 1942. Victor M. Hermelin, the
Company's Chairman and founder, obtained initial patents for early controlled
release and enteric coated technologies in the early 1950's.
We are a pioneer in advanced drug delivery technologies that enhance
the effectiveness of new therapeutic agents, existing pharmaceutical products
and nutritional supplements. We have developed and patented a wide variety of
drug delivery and formulation technologies in four principal areas: controlled
release, oral and topical site-specific, one quick dissolving tablet and three
tastemasking systems. We use these systems to develop products that we and our
licensees market to improve and control the human body's absorption and
utilization of active pharmaceutical compounds, or to provide other benefits.
The technology allows the compounds to be administered less frequently with
potentially reduced side effects, improved drug efficacy and enhanced patient
compliance.
Our principal executive offices are located at 2503 South Hanley Road,
St. Louis, Missouri 63144, and our telephone number is (314) 645-6600.
USE OF PROCEEDS
The Company will not receive any proceeds from any transfer or sale of
the shares of Common Stock offered hereby. Any proceeds obtained from any sale
will be received by the Executive or by the Consultant, as the case may be. See
"The Executive" and "The Consultant."
THE EXECUTIVE
The Executive currently owns 161,509 shares of Class A Common Stock
(including 75,000 shares which could be purchased under options exercisable
currently or within 60 days of the date of this prospectus) and 954,510 shares
of Class B Common Stock (including 375,000 shares which could be purchased under
options exercisable currently or within 60 days of the date of this prospectus).
Such amounts do not include: (i) 264,375 shares each of Class A Common Stock and
Class B Common Stock held in an irrevocable trust created by another person for
the benefit of the Executive, who has no voting or invested power over such
shares, and (ii) 3,985,452 shares of Class A Common Stock and 4,316,202 shares
of Class B Common Stock held in irrevocable trusts created by another person,
over which trust the Executive is one of three trustees who shares voting and
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investment power. The Executive currently intends, by means of this prospectus,
to transfer the options and/or the Common Stock underlying the options. However,
the Company can give no estimate of the amount of future transfers or when such
future transfers may occur. When the Executive intends to transfer options
and/or Common Stock covered by this prospectus in the future, this prospectus
will be supplemented to disclose the amounts of options and/or Common Stock
intended to be transferred.
THE CONSULTANT
The Consultant is entitled to receive the Consultant Common Stock
pursuant to the Consulting Agreement. The Consultant currently owns no shares of
Common Stock. The Consultant provided certain product consulting services under
the Consulting Agreement.
PLAN OF DISTRIBUTION
The Executive
The Executive currently intends from time to time to transfer by gift
the options and/or the Executive Common Stock referred to herein to charitable
foundations or other transferees for estate planning purposes. In addition,
although the Executive has no present intention to offer or sell any shares of
Executive Common Stock included in the Prospectus, the Executive may from time
to time in the future sell shares of Executive Common Stock in any of the
following ways: (i) through dealers; (ii) through agents; or (iii) directly to
one or more purchasers. The distribution of the shares of Executive Common Stock
may be effected from time to time in one or more transactions (which may involve
crosses or block transactions) (A) on the NYSE market, (B) on a national stock
exchange (on which the shares of Executive Common Stock may be traded from time
to time) in transactions which may include special offerings, exchange
distributions and/or secondary distributions pursuant to and in accordance with
the rules of such exchanges, or (C) in transactions other than on such exchanges
or in the over-the counter market, or a combination of such transactions. Any
such transaction may be effected at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices. The Executive may effect such transactions by selling shares
of Executive Common Stock to or through broker-dealers, and such broker-dealers
may receive compensation in the form of discounts, concessions or commissions
from the transferors and/or commissions from purchasers of shares of Executive
Common Stock for whom they may act as agent. The Executive and any
broker-dealers or agents that participate in the distribution of shares of
Executive Common Stock by the Executive might be deemed to be underwriters, and
any discounts, commissions or concessions received by any such broker-dealers or
agents might be deemed to be underwriting discounts and commissions under the
Securities Act.
The Consultant
The Consultant from time to time in the future may sell shares of
Consultant Common Stock in any of the ways referred to in the immediately
preceding paragraph. The Consultant and any broker-dealers or agents that
participate in the distribution of shares of Consultant Common Stock by the
Consultant might be deemed to be underwriters, and any discounts, commissioners
or concessions received by any such broker-dealer or agents might be deemed to
be underwriting discounts and commissions under the Securities Act.
Under the securities laws of certain states, the Common Stock may be
sold in such states only through registered or licensed brokers or dealers. In
addition, in certain states, the Common Stock may not be sold unless the Common
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Stock has been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
The Company has informed the Executive and the Consultant that (i) the
antimanipulation provisions of Regulation M under the Exchange Act may apply to
purchase and sales of the Common Stock by the Executive and that there are
restrictions on market-making activities by persons engaged in the distribution
of the Common Stock and (ii) if a particular offer of Common Stock is to be made
on terms constituting a material change from the information set forth above
with respect to the respective Plans of Distribution of the Executive and of the
Consultant, then to the extent required, a prospectus Supplement must be
distributed setting forth such terms and related information as required.
At the time a subsequent transfer of options and/or Common Stock is
made, a prospectus supplement will be distributed which will give the aggregate
number of options and/or shares of Common Stock offered, the purchase price (if
available), the amount of expenses of the offering and the terms of the
offering, including the name of any underwriters, dealers or agents, and the
amount of any discounts, commissions or other compensation received from the
Executive or from the Consultant, as the case may be.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification by a corporation of certain officers, directors,
employees and agents. Consistent therewith, Article IX of the Company's Bylaws
requires that the Company indemnify all persons whom it may indemnify pursuant
thereto to the fullest extent permitted by Section 145. Article IX also provides
that expenses incurred by an officer or director of the Company or any of its
direct or indirect wholly-owned subsidiaries, in defending a civil or criminal
action, suit or proceeding, will be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such officer, director, employee or agent or repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Company as authorized. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
In addition, Article 12 of the Company's Certificate of Incorporation
provides that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of (i) a breach of the
director's duty of loyalty to the Company or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of Delaware General Corporation Law; and
(iv) transactions from which the director derived an improper personal benefit.
The Company maintains a policy of insurance under which the directors
and officers of the Company are insured, subject to the limits of the policy
against certain losses arising from claims made against such directors and
officers by reason of any acts or omissions covered under such policy in their
respective capacities as directors or officers.
Note: The SEC has taken the position that indemnifying directors,
officers and controlling persons of the Company for liabilities under the
Securities Act of 1933 is against public policy. In accordance with SEC
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requirements, the Company will not make any indemnification payment of this
nature unless a court of competent jurisdiction has determined that the
indemnification is not against public policy.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be
passed upon for the Company by Gallop, Johnson & Neuman, L.C., St. Louis,
Missouri.
EXPERTS
The Company's consolidated financial statements and the related
supplemental schedules, incorporated herein by reference to the Company's Annual
Report on Form 10-K, have been audited by BDO Seidman, LLP, independent
auditors, as stated in their reports incorporated herein by reference and have
been so incorporated by reference in reliance upon such reports given upon the
authority of that firm as experts in accounting and auditing.
No person is authorized to give any information or to make any representations,
other than those contained in this prospectus, in connection with the offering
described herein, and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company, the Executive
or the Consultant. This prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, nor shall there be any sale of these securities
by any person in any jurisdiction in which it is unlawful for such person to
make such offer, solicitation or sale. Neither the delivery of this prospectus
nor any sale made hereunder shall under any circumstances create an implication
that the information contained herein is correct as of any time subsequent to
the date hereof.
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75,000 Shares of Class A Common Stock
150,000 Shares of Class B Common Stock
500 Shares of Class A Common Stock
of
K-V Pharmaceutical Company
REOFFER PROSPECTUS
October 19, 2000
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Company's annual report filed on Form 10-K for the fiscal year
ended March 31, 2000;
(b) The Company's quarterly report filed on Form 10-Q for the fiscal
quarter ended June 30, 2000;
(c) The description of the Class A and Class B Common Stock contained
in the Company's Registration Statement on Form 8-A filed with the Commission on
March 22, 1999.
In addition to the foregoing documents, all documents subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
The validity of the issuance of the shares of Common Stock described
herein has been passed upon for the Company by Gallop, Johnson & Neuman, L.C.,
St. Louis, Missouri.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
permits indemnification by a corporation of certain officers, directors,
employees and agents. Consistent therewith, Article IX of the Company's Bylaws
requires that the Company indemnify all persons whom it may indemnify pursuant
thereto to the fullest extent permitted by Section 145. Article IX also provides
that expenses incurred by an officer or director of the Company or any of its
direct or indirect wholly-owned subsidiaries, in defending a civil or criminal
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action, suit or proceeding, will be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such officer, director, employee or agent or repay such amount
if it shall ultimately be determined that he is not entitled to be indemnified
by the Company as authorized. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
In addition, Article 12 of the Company's Certificate of Incorporation
provides that directors of the Company shall not be personally liable for
monetary damages to the Company or its stockholders for a breach of fiduciary
duty as a director, except for liability as a result of (i) a breach of the
director's duty of loyalty to the Company or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) an act related to the unlawful stock repurchase or
payment of a dividend under Section 174 of Delaware General Corporation Law; and
(iv) transactions from which the director derived an improper personal benefit.
The Company maintains a policy of insurance under which the directors
and officers of the Company are insured, subject to the limits of the policy
against certain losses arising from claims made against such directors and
officers by reason of any acts or omissions covered under such policy in their
respective capacities as directors or officers.
Item 7. Exemption from Registration Claimed
With respect to the restricted securities to be reoffered or resold
pursuant to this Registration Statement, the sales and issuances of such
restricted securities were deemed to be exempt from registration under the
Securities Act in reliance upon Section 4(2) thereof as transactions not
involving a public offering. The purchasers in such private offerings
represented their intention to acquire the securities for investments only and
not with a view to the distribution thereof and appropriate legends were affixed
to the stock certificates issued in such transactions. All purchasers had
adequate access, through their employment or consulting or other relationships,
to sufficient information about the Company to make an informed investment
decision. No underwriter was employed with respect to any such sales.
Item 8. Exhibits
Exhibit
Number Description
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4.1(a) The Company's Certificate of Incorporation, which was filed as
Exhibit 3(a) to the Company's Annual Report on Form 10-K for the
year ended March 31, 1981, is incorporated herein by this
reference.
4.1(b) Certificate of Amendment to Certificate of Incorporation of the
Company, effective March 7, 1983, which was filed as Exhibit 3(c)
to the Company's Annual Report on Form 10-K for the year ended
March 31, 1983, is incorporated herein by this reference.
4.1(c) Certificate of Amendment to Certificate of Incorporation of the
Company, effective June 9, 1987, which was filed as Exhibit 3(d)
to the Company's Annual Report on Form 10-K for the year ended
March 31, 1988, is incorporated herein by this reference.
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4.1(d) Certificate of Amendment to Certificate of Incorporation of the
Company, effective September 24, 1987, which was filed as Exhibit
3(f) to the Company's Annual Report on Form 10-K for the year
ended March 31, 1988, is incorporated herein by this reference.
4.1(e) Certificate of Amendment to Certificate of Incorporation of the
Company which was filed as Exhibit 3(e) to the Company's Annual
Report on Form 10-K for the year ended March 31, 1996, is
incorporated herein by this reference.
4.1(f) Certificate of Amendment to Certificate of Incorporation of the
Company, which was filed as Exhibit 3(f) to the Company's Annual
Report on Form 10-K for the year ended March 31, 1996, is
incorporated herein by this reference.
4.2(a) Bylaws of the Company, as amended through November 18, 1982,
which was filed as Exhibit 3(e) to the Company's Annual Report on
Form 10-K for the year ended March 31, 1993, is incorporated
herein by this reference.
4.2(b) Amendment to Bylaws of the Company, which was filed as Exhibit
3(h) to the Company's Annual Report on Form 10-K for the year
ended March 31, 1996, is incorporated herein by this reference.
5.1 Opinion of Gallop, Johnson & Neuman, L.C. (filed herewith).
10.1 Agreement between the Company and Marc S. Hermelin, Vice
Chairman, dated December 16, 1996, with supplemental letter
attached, which was filed as Exhibit 10(z) to the Company's
Annual Report on Form 10-K for the year ended March 31, 1997, is
incorporated herein by this reference.
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of BDO Seidman, LLP (filed herewith).
25 Power of Attorney (included on page II-6 of this Registration
Statement).
Item 9. Undertakings
(a) The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Company pursuant to Section 13 or 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
expenses incurred or paid by a director, officer or controlling person
of the Company in the successful defense of any action, suit or
proceeding is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the County of St. Louis, State of Missouri, on this 19th day
of October, 2000.
K-V PHARMACEUTICAL COMPANY
By: /s/ Gerald R. Mitchell
---------------------------------------
Gerald R. Mitchell
Vice President and Treasurer
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POWER OF ATTORNEY
Each of the undersigned hereby appoints Gerald R. Mitchell and Alan G.
Johnson, and each of them (with full power to act alone), as attorneys and
agents for the undersigned, with full power of substitution, for and in the
name, place and stead of the undersigned, to sign and file with the Securities
and Exchange Commission under the Securities Act of 1933 any and all amendments
and exhibits to this Registration Statement and any abbreviated Registration
Statement filed pursuant to Rule 462(b) and any and all applications,
instruments and other documents to be filed with the Securities and Exchange
Commission pertaining to the registration of the securities covered hereby, with
full power and authority to do and perform any and all acts and things
whatsoever requisite or desirable.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons and in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Victor M. Hermelin Director and Chairman October 19, 2000
------------------------- of the Board
Victor M. Hermelin
/s/ Marc S. Hermelin Director, Vice Chairman October 19, 2000
------------------------- of the Board and
Marc S. Hermelin Chief Executive Officer
(principal executive officer)
/s/ Alan G. Johnson Director, Secretary and October 19, 2000
------------------------- Senior Vice President,
Alan G. Johnson Strategic Planning &
Corporate Growth
Director October ___, 2000
-------------------------
Garnet E. Peck, Ph.D.
/s/ Norman D. Schellenger Director October 19, 2000
-------------------------
Norman D. Schellenger
/s/ Gerald R. Mitchell Vice President and October 19, 2000
------------------------- Treasurer (principal financial
Gerald R. Mitchell and accounting officer)
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
-------- -----------
4.1(a) The Company's Certificate of Incorporation, which was filed as
Exhibit 3(a) to the Company's Annual Report on Form 10-K for the
year ended March 31, 1981, is incorporated herein by this
reference.
4.1(b) Certificate of Amendment to Certificate of Incorporation of the
Company, effective March 7, 1983, which was filed as Exhibit 3(c)
to the Company's Annual Report on Form 10-K for the year ended
March 31, 1983, is incorporated herein by this reference.
4.1(c) Certificate of Amendment to Certificate of Incorporation of the
Company, effective June 9, 1987, which was filed as Exhibit 3(d)
to the Company's Annual Report on Form 10-K for the year ended
March 31, 1988, is incorporated herein by this reference.
4.1(d) Certificate of Amendment to Certificate of Incorporation of the
Company, effective September 24, 1987, which was filed as Exhibit
3(f) to the Company's Annual Report on Form 10-K for the year
ended March 31, 1988, is incorporated herein by this reference.
4.1(e) Certificate of Amendment to Certificate of Incorporation of the
Company which was filed as Exhibit 3(e) to the Company's Annual
Report on Form 10-K for the year ended March 31, 1996, is
incorporated herein by this reference.
4.1(f) Certificate of Amendment to Certificate of Incorporation of the
Company, which was filed as Exhibit 3(f) to the Company's Annual
Report on Form 10-K for the year ended March 31, 1996, is
incorporated herein by this reference.
4.2(a) Bylaws of the Company, as amended through November 18, 1982,
which was filed as Exhibit 3(e) to the Company's Annual Report on
Form 10-K for the year ended March 31, 1993, is incorporated
herein by this reference.
4.2(b) Amendment to Bylaws of the Company, which was filed as Exhibit
3(h) to the Company's Annual Report on Form 10-K for the year
ended March 31, 1996, is incorporated herein by this reference.
5.1 Opinion of Gallop, Johnson & Neuman, L.C. (filed herewith).
10.1 Agreement between the Company and Marc S. Hermelin, Vice
Chairman, dated December 16, 1996, with supplemental letter
attached, which was filed as Exhibit 10(z) to the Company's
Annual Report on Form 10-K for the year ended March 31, 1997, is
incorporated herein by this reference.
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of BDO Seidman, LLP (filed herewith).
24.1 Power of Attorney (included on page II-6 of this Registration
Statement).
II-7
